Occupational illness or injury and protected period

Employee’s absences due to occupational illness or injury are excluded from the calculation of the protected period in the case of the employer’s liabilty under art. 2087 of the Italian Civil Code or explicit NCBA provision.

Case ref: Cassazione Civile, sez. lav., 4 febbraio 2020, n. 2527

With Judgment no. 2527 of February 4th, 2020, the Court of Cassation confirms that the employee’s absences due to occupational illness or injury, as included in the general definition of injury and illness provided by art. 2110 of the Italian Civil Code, are normally considered for the calculation of the protected period (so-called “periodo di comporto”). On the other hand, in order to exclude the absences for occupational injury or illness from the protected period, it is not enough that the illness or injury has an occupational cause, merely connected to the job, but the employer’s liability has to be established “for violating the obligations provided by art. 2087 of the Italian Civil Code”. In particular, the Supreme Court specifies that the employee’s absences due to occupational illness or injury are excluded from the calculation of the protected period when they “have been caused by harmful factors that are intrinsic to the job or present in the place of work” as well as “when the employer is responsible for such a harmful and dangerous situation” for violating the obligations under art. 2087 of the Italian Civil Code. Furthermore, the Court of Cassation remarks that, in any case, the calculation of such absences in the protected period can be expressly provided by the National Collective Bargaining Agreements: “no provisions prevent the NCBAs from excluding the absences due to occupational illness or injury from the calculation of the protected period under art. 2110 of the Italian Civil Code neither is such an exclusion – which is reasonable and in line with the principle of preventing the employee from suffering injury caused by the job – limited by art. 2110 of the Italian Civil Code” which is a provision “granting wide freedom to the parties’ autonomy”.